New Mexico

New Mexico Law

DOMESTIC VIOLENCE FIREARM PROHIBITIONS

New Mexico Domestic Violence Firearm Purchase and Possession Prohibitions

New Mexico prohibits purchase, possession, and transportation of firearms by persons subject to final domestic violence orders of protection and persons convicted of:

1. Battery against a household member;
2. Criminal damage to property of a household member;
3. A first offense of stalking; or
4. A crime listed in 18 U.S.C. 921.1

Furthermore, if a court issuing a final order of protection determines “that the restrained party presents a credible threat to the physical safety of the household member after the restrained party has received notice and had an opportunity to be heard or by stipulation of the parties” the court shall order the restrained party to “… refrain from purchasing, receiving, or possessing or attempting to purchase, receive or possess any firearm while the order of protection is in effect.”2

NEW MEXICO DOMESTIC VIOLENCE ORDER OF PROTECTION FIREARM REMOVAL

Civil Domestic Violence Orders of Protection that Require Removal

If a court issuing a final order of protection determines “that the restrained party presents a credible threat to the physical safety of the household member after the restrained party has received notice and had an opportunity to be heard or by stipulation of the parties” the court shall order the restrained party to “deliver any firearm in the restrained party’s possession, care, custody or control to a law enforcement agency, law enforcement officer or federal firearms licensee while the order of protection is in effect; and … refrain from purchasing, receiving, or possessing or attempting to purchase, receive or possess any firearm while the order of protection is in effect.”3

New Mexico does not require removal of firearms or ammunition from persons subject to temporary domestic violence protection orders; however, the court, as part of a temporary of protection, may “order other injunctive relief as the court deems necessary for the protection of a party[.]” 4

Individuals Who May Petition for an Order of Protection

An individual who is the victim of domestic abuse may petition for an order of protection.5

“Domestic abuse” is defined as:

1. An incident of stalking or sexual assault committed by any person;
2. An incident by a household member committed against another household member consisting of or resulting in:
   1. Physical harm;
   2. Severe emotional distress;
   3. Bodily injury or assault;
   4. A threat causing imminent fear of bodily injury;
   5. Criminal trespass;
   6. Criminal damage to property;
   7. Repeatedly driving by a residence or work place;
   8. Telephone harassment;
   9. Harassment; or
   10. Harm or threatened harm to children.6

The definition of “household member” includes the following individuals regardless of cohabitation:

1. Spouses;
2. Former spouses;
3. Parents;
4. Present or former stepparents;
5. Present or former parents-in-law;
6. Grandparents;
7. Grandparents-in-law;
8. Children;
9. Stepchildren;
10. Grandchildren;
11. A co-parent of a child;
12. Persons in a dating or intimate relationship.7

Removal Process

If the court orders the restrained party to relinquish firearms, the restrained party shall relinquish all firearms in their immediate possession or control or subject to their possession or control in a safe manner to a law enforcement officer, a law enforcement agency, or a federal firearms licensee within 48 hours of service of the order of protection. 8

“A law enforcement officer or law enforcement agency shall take possession of all firearms subject to the order of protection that are relinquished by the restrained party or are in plain sight or are discovered pursuant to a lawful search.” 9

If the restrained party is present at the hearing on the order of protection, the court shall provide them with:

1. A receipt form to identify all firearms to be surrendered; or
2. A declaration of non-relinquishment if the restrained party has no firearms to relinquish.10

A law enforcement officer or agency that takes possession of a firearm pursuant to an order of protection shall:

1. Prepare a receipt identifying all firearms relinquished or taken;
2. Provide a copy of the receipt to the restrained party;
3. Provide a copy of the receipt to the petitioner within 72 hours of taking possession of the firearm(s);
4. File the original receipt with the court that issued the order within 72 hours of taking possession of the firearm(s); and
5. Ensure that the law enforcement agency retains a copy of the receipt. 11

Within 72 hours of issuance of the order of protection, the restrained party must either:

1. File a copy of the receipt provided by the law enforcement officer or agency with the court that issued the order of protection; or
2. File a declaration of non-relinquishment stating that the restrained party does not have firearms in their immediate possession or control or subject to their possession or control. 12

Return of Firearms 

A formerly restrained party may request the return of firearms from a law enforcement agency or federal firearms licensee in possession of relinquished or seized firearms. 13Within 3 business days of such request, the law enforcement agency or federal firearms licensee shall make the firearm(s) available to the formerly restrained party if they are eligible to own and possess a firearm. 14

A formerly restrained person who does not wish to have the firearm returned or who is ineligible to possess a firearm may sell or transfer the firearm to a federal firearms licensee. A law enforcement agency with custody of such firearm(s) shall not release the firearm(s) to a federal firearms licensee until:

1. The licensee has displayed proof that the formerly restrained person has transferred the firearm to the licensee; and
2. The law enforcement agency has verified the transfer with the formerly restrained person.15

Penalties for Violation

A person who is subject to a final domestic violence order of protection who receives, transports or possesses a firearm is guilty of a misdemeanor16 punishable by imprisonment in county jail for a term less than one year, a fine of not more than $1000, or both. 17

A peace officer who has probable cause to believe a restrained party to an order of protection has violated the order of protection may arrest such person without a warrant and take him or her into custody.18

A restrained party convicted of violating an order of protection is guilty of a misdemeanor,19 punishable by a term of imprisonment in the county jail for less than one year, the payment of a fine of not more than $1000, or both.20 Upon a second or subsequent conviction for a violation of an order of protection, the restrained party “shall be sentenced to a jail term of not less than seventy-two consecutive hours that shall not be suspended, deferred or taken under advisement.”21

The court shall also order the restrained party to make full restitution to the party injured by the violation of an order of protection and, if possible, to participate in and complete a program of professional counseling, at the restrained party’s own expense.22

A peace officer, in addition to charging the restrained party with violating an order of protection, shall, where probable cause exists, file all other possible criminal charges arising from an incident of domestic violence.23

The state or protected party may also seek any other civil or criminal remedy available to them.24